Models of Pluralistic Discourse: a Consideration of the Ismaili Muslim Conciliation and Arbitration Boards in Kenya

in Yearbook of Islamic and Middle Eastern Law Online
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Models of Pluralistic Discourse: a Consideration of the Ismaili Muslim Conciliation and Arbitration Boards in Kenya

in Yearbook of Islamic and Middle Eastern Law Online

References

I Other important social forces/systems that influence these interactions are education and the media.

2 Amy Gutman (cd.), Multiculturalism: Exploring the Politics ofXecognition (Princeton: Princeton University Press, 1994), being an expanded edition of Charles Taylor's Multiculturalism and "The Politics of Recognition" (1992).

Ibid. at 32

4 Adeno Addis, "On Human Diversity and the Limits of Toleration", Nomos, vol. 39 (1996), pp. 112-153 at 117. 5 Ibid. at 125.

Ibid. at 126.

For a description of the Kikuyu system see Jomo Kenyatta, Facing MountKenya (London, 1938).

8 This is also the case in Tanzania and India although the legal frameworks under which this occurs arc different. 9 Creating one comprehensive code for these matters was attempted in Kenya, but the effort did not succeed. On these efforts see E. Cotran "Marriage, Divorce and Succession Laws in Kenya: Is Integration or Unification possible?" [ 1996] Journal ofAfrican Law 40:2 at 194-204 and Report of the Commission on the Law ofMarriage and Divorce, Government Printer, Nairobi, 1968. ° Cap. 11. 11 Cap.155. 12 Cap. 156. 3 See in particular s. 5 of the Kadhis Courts Act.

i4 I have discussed the development of Shia Imami Ismaili law by constitutions in an earlier article "Principles in the Development of Ismaili Law" in vol. 7 of this Yearbook (2001) at pp. 115-126. ls See especially ss. 3 and 4 of the Mohammedan Marriage Divorce and Succession Act. For a guide to Kenyan law generally see Charles Mwalimu, The Kenyan Legal System: An Overviem (Law Library, Library of Congress: Washington, DC, 1988). For a description of the Islamic Marriage and Divorce laws in Kenya see chapter one of E. Cotran, The Law of Marriage and Divorce: Restatement ofAfrican Law, Kenya (London: Sweet 8c Maxwell, 1968). 17 Proclamation No. 2 of 1928. i8 Chapter 3 of the Report of the Commission on the Law ofMarriage and Divorce (Nairobi, 1968).

19 Civil Appeal No. 52 of 1981 (unreported). 1 am indebted to Judge Eugene Cotran for having provided me with these and other materials based on his experience in East Africa. I might add that in Nurani, the Court of Appeal was affirming a decision of Cotran J. in the High Court! For a decision in a similar vein, also recognizing and affirming a settlement of an Ismaili community-based institution, see Lowe J.'s decision in the Tanzania (or, more correctly, "Tanganiyka" as it then was) case of Ratansi v. Mahmood (1955) 2 TLR 212. 20 Ibid. 21 This applies equally in the case of Kadhis courts established under the Constitution of Kenya and the Kadhis Courts Act, Cap 11. Appeals from these courts lie to the High Court, which will sit with some kadhis as assessors in these cases. 22 Act No. 4 of 1995; see ss. 36-37 of the Act empowering the court to order the enforcement of the arbitral award, and for the conditions under which such enforcement may be refused.

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